The Right to Health – An Empty Promise?

Three perspectives presented at the University of Erlangen-Nuremberg EFI Conference in Berlin, 14-16 September 2016

Lucía Berro Pizzarossa presented a research conducted in collaboration with Katrina Perehudoff about the constitutionalization of sexual and reproductive health and rights. Veronika Flegar discussed the existence of a right to preventive health care for asylum-seeking and undocumented migrant children under international law. Brigit Toebes keynote lecture took a more general approach towards the relevance of progressive realization and the AAAQ and identified some of the possible solution for such practical problems as identified with regard to both reproductive rights and undocumented migrants.

Lucía Berro Pizzarossa: Despite over three decades of discussing sexual and reproductive health and rights, we have seen very little progress in reducing their health inequalities and poor health outcomes. There is the need for a framework that can translate the international rights discussions into action. Standards in international law can only be made a reality by committed governments applying and enforcing global norms domestically. To this end, domestic constitutions are an important affirmation of State duties and individual entitlements. Constitutional rights can help shape national laws, policies and programs, or they may even be enforceable before domestic courts. The findings are based on the GHLG project Constitutional Health Commitments, where we analyzed constitutional commitments to sexual and reproductive rights and health to 1) develop an understanding of existing State commitments and 2) identify the building blocks of a model constitutional text using a human rights framework. The research we presented shows that very few jurisdictions have enshrined sexual and reproductive health and rights in their constitutions and the provisions differ widely on emphasis, approach and scope. However, our results demonstrate the political will of some countries to incorporate them in their national constitutions and provides examples of constitutional commitments to willing governments, policy makers and health and human rights advocates who seek to introduce similar text into their law, thereby providing individuals with a top-down (i.e. from laws and policies to programs) and bottom-up (i.e. enforcement through courts) framework to enjoy their right to sexual and reproductive health and rights.

Veronika Flegar: There is a need for increased attention to some of the aspects that are easily neglected in the current refugee and asylum crisis. Especially preventive health care and the rights of undocumented migrant children do not yet receive sufficient attention. My doctrinal analysis of the principle of the preventive health care rights of children showed that non-discrimination under the Convention on the Rights of the Child (CRC) could largely be labelled as an empty promise for the health rights of undocumented migrant children. While asylum-seeking children are entitled to far-reaching rights under the right to health of children, the extent to which also undocumented migrant children explicitly enjoy these rights is less clear. While terms such as ‘all children’, ‘all sections of the child population’ or ‘all children within [the states’] jurisdiction’ suggest that the rights of the CRC apply equally to national, asylum-seeking and undocumented migrant children, the fact that extensive reference in the CRC framework is made to asylum-seeking but not to undocumented migrant children undermines this conclusion. This is not the only aspect that needs further clarification in order to ensure the effective implementation of the right to preventive health care of all children. Also the right itself needs to be further clarified and delimitated. While it is promising that the right to preventive health care is explicitly and separately mentioned in Article 24 CRC, the exact content is spread throughout various documents. The CRC would benefit greatly from an additional General Comment on non-discrimination that could emphasize the scope of non-discrimination as truly encompassing all children and would pay particular attention to the relevance of non-discrimination under the right to health.

Brigit Toebes: There is no reason to be skeptical about the right to health, let alone sarcastic. Yet our research into various dimensions of the right to health reveals the need for a stronger and more refined legal framework. What requires improvement, refinement and elaboration are the concepts that we work with under the right to health. Progressive realisation in the context of the right to health is an open-ended concept and as such it forms the Achilles’ heel of the right to health. One could say that progressive realization begins where the minimum core ends. Once the core has been realised, States need to gradually or progressively realise the remaining part of the right. Progressive realization recognizes the reality that the full realization of economic and social rights may not be possible immediately or in a short period of time. In this sense, progressive realization differs significantly from the obligation contained in Article 2 of the International Covenant on Civil and Political Rights which contains the immediate obligation to respect and ensure all the rights. Several sources including the Limburg principles have stressed that progressive realization is not just about making more resources available: it is more about making effective use, optimally prioritizing available resources, and about careful planning. So it is about setting concrete priorities and targets, whilst avoiding inefficiency and corruption. To give one example: in many countries the poor are deprived of primary healthcare while specialized hospitals are built providing expensive care. Such outcomes go against the principles of progressive realization. A possible solution for making the right more concrete is working with the AAAQ in combination with the setting of indicators and benchmarks. The AAAQ is a comprehensive tool and it draws the attention to equitable access to healthcare where priorities in healthcare have to be set. The AAAQ is universally applicable and allows for comparison across countries. As such, for instance, the physical or geographic accessibility of primary healthcare is a problem in many nations, varying from Ethiopia, to Brazil, to Iceland. It has been suggested that the AAAQ is particularly useful in a policy setting; yet there are also interesting examples from domestic law and international and domestic case law showing an increasing use of the AAAQ in a legal context. In order to ensure that the right to health is not an empty promise, the primary concepts, such as the minimum core, the AAAQ, progressive realization and the definition of legal obligations must be refined. To come to a better understanding of these concepts, the insights from experts in public health, medicine, health economics as well as from civil society are most needed.

Some of the GHLG members at the Right to Health conference in Berlin. From left to right: Milan Markovic, Veronika Flegar, Lucía Berro Pizzarossa and María Dalli.

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